Mann v. State, 25799.

• Decision Date: 27 June 1933
• Docket Number: No. 25799.,25799.
• Citation: 186 N.E. 283,205 Ind. 491
• Parties: MANN v. STATE.
• Court: Indiana Supreme Court

205 Ind. 491

186 N.E. 283

MANN

v.STATE.

No. 25799.

Supreme Court of Indiana.

June 27, 1933.

Appeal from Criminal Court, Marion County; Frank Symmes, Special Judge.

Harry Mann, having been charged with rape, was convicted of assault and battery with intent to commit rape, and he appeals.

Reversed, with instructions.

Thomas H. Fittz, of Indianapolis, for apellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

MYERS, Judge.

Appellant was charged by affidavit with the crime of rape upon a female child under the age of 12 years. Acts 1927, p. 576, c. 201; section 2429, Burns' Supp. 1929. Trial by the court. He was found guilty of assault and battery with intent to commit rape; his age 45 years. Judgment that he be imprisoned in the state prison for a term of not less than 5 years, nor more than 21 years, and pay a fine of $100. He prosecuted this appeal, assigning as errors the overruling of his several motions: (1) In arrest of judgment; (2) for a new trial; (3) to modify the judgment; (4) for discharge.

Appellant, to support his motion in arrest, relies on the statutory cause that the facts stated in the affidavit do not constitute a public offense. Section 2326, cl. 2, Burns' 1926. The affidavit, omitting the formal and other parts not at present material, charges that appellant, on the date therein stated, “did then and there unlawfully and feloniously have carnal knowledge of one Alice Bowman, a female child then and there under the age of twelve years, to-wit. ***”

Appellant insists, in effect, that the affidavit, to be sufficient to uphold a conviction of the crime for which he was found guilty, should have descended to particulars, and pleaded, in addition to the act of “carnal knowledge,” sufficient facts to show the existence of the element of assault and battery with intent on appellant's part to commit the act of “carnal knowledge.” The argument is that “carnal knowledge” is only one element of the crime of rape; that every charge of rape must necessarily include a charge of assault and ravish, and, since the latter elements are not expressly charged in the commission of the offense, the inferior offense of which he was convicted was not within the issues.

The crime of rape in this state is defined by statute, which, in so far as the same is applicable to the charge in the instant case, provides that “whoever, unlawfully, has carnal knowledge of a *** female child under sixteen (16) years of age, *** is guilty of rape in the first degree, and, on conviction, shall be imprisoned,” etc. Section 2429, supra. Other than the word “feloniously,” it will be noticed that the affidavit follows closely the language of the statute. The word “feloniously” is technically essential in describing a common-law felony, and it is also required when prescribed by statute defining a felony (State v. Maddox, 85 Ind. 585), for the reason it is regarded as a constituent element thereof. While the statute under consideration does not include the word “feloniously,” its inclusion in the accusation we approve, although it may be treated as the equivalent to “purposely” or “unlawfully” or as having the quality of a felony. Bouv. Law Dict. (Rawles 3d Rev.); Shinn v. State, 68 Ind. 423.

Appellant's argument would be quite persuasive were this a prosecution under the common law, or in case the offense was not sufficiently defined by statute, making it necessary for the pleader to supplement the alleged unlawful act by other elements, but here the charge is substantially in the language of the statute which defines the offense and states directly and specifically what acts shall constitute it. The offense being purely statutory, it has no relation to the common law (section 2400, Burns' 1926), nor was it necessary to plead additional particulars in order to make the affidavit good as against a motion to quash or a motion in arrest of judgment. Simpson v. State, 195 Ind. 633, 146 N. E. 747;State v. Closser, 179 Ind. 230, 99 N. E. 1057; Johns v. State, 159 Ind. 413, 65 N. E. 287, 59 L. R. A. 789;State v. Bridgewater, 171 Ind. 1, 85 N. E. 715;State v. Southern Ind. Gas Co., 169 Ind. 124, 81 N. E. 1149, 13 Ann. Cas. 908.

Appellant relies on insufficient evidence and finding contrary to law as causes in support of his motion for a new trial. The evidence in this case has been read and carefully considered. It will serve no good purpose to incorporate a general recital of the evidence in this opinion. It is sufficient to say that we are entirely convinced from our review of the evidence that it was a case in that respect for the trial court, and, except as hereafter noted, its conclusion thereon, according to the settled rules of law, is binding on this court.

Appellant also takes the position that the finding of the court was contrary to law, because the act of 1921 (section 2429, Burns' 1926) was repealed by the act of 1927 (section 2429, Burns' Supp. 1929), which redefined the crime of rape into degrees, so that at present there is no statute defining attempted rape. It is evident that the court's finding was upon the theory that section 2429.1, Burns' Supp. 1929, which was a part of section 1, Acts 1921, p. 373, c. 148, amending section 361, Acts 1905, pp. 584, 662, c. 169, was not repealed by the act of 1927, Acts 1927, p. 576, c....